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Tort Law and Responsibility

In John Oberdiek, ed., Philosophical Foundations of the Law of Torts (2014, Forthcoming)

Fordham Law Legal Studies Research Paper No. 2268683

23 Pages Posted: 24 May 2013  

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law

Date Written: May 22, 2013

Abstract

It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories.

In this chapter, we aim to provide an account of the centrality of responsibility to tort law, thereby restoring its proper place in tort theory. We first review the impressive effort of Stephen Perry to harness Tony Honoré’s notion of “outcome-responsibility” to supply a satisfactory understanding of tort law, and negligence law in particular. We then demonstrate how notions of responsibility of the sort invoked by Perry help explain some of the most important developments in modern tort doctrine, including the emergence of strict products liability, comparative fault, and robust-yet-limited affirmative duties. Finally, we argue that our own interpretive account — the civil recourse theory of tort — is superior to Perry’s in that it places notions of responsibility at the center of tort law while also making better sense of prevailing doctrine.

Keywords: Accountability, Affirmative Duty, Civil Recourse, Coleman, Comparative Fault, Corrective Justice, Damages, Duty of Repair, Hart, Hershovitz, Honoré, Liability, Localized Distributive Justice, Outcome-Responsibility, Perry, Remedies, Repair, Responsibility, Rights of Action, Strict Products Liability

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., Tort Law and Responsibility (May 22, 2013). In John Oberdiek, ed., Philosophical Foundations of the Law of Torts (2014, Forthcoming); Fordham Law Legal Studies Research Paper No. 2268683. Available at SSRN: https://ssrn.com/abstract=2268683 or http://dx.doi.org/10.2139/ssrn.2268683

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

Areeda 232
1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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